The Verdict Aug 97

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					The Trial of the Low Impact Rear End Collision: “Ten Common Myths” By Albert G. Stoll, Jr. The low property damage rear end collision may result in an injury your client will suffer the effects from for the rest of their life. A fair settlement offer is not to be expected. To get anywhere near fair compensation the case usually has to be tried to a verdict. This article sets forth the typical case scenario and then addresses “Ten Common Myths” about the nature and severity of the injury sometimes suffered in a low impact rear end collision. While reading this article, keep in mind, the lawyer may refer to and read from the articles I cite as medical authority during trial, within the parameters of evidence code section 802 and the discussion in Lugue v. McLean (1972) 8 Cal 3d 136, 148-149. Hypothetical Case: A forty two year old women, is seated in her car, at an intersection, getting ready to make a left hand turn when she is struck from the rear by a car going ten miles per hour. She has no pain at the scene, but thirty minutes after the collision she develops a headache and neck pain. There has been very minor damage to the rear of the women’s car. Later in the day a family member takes the victim to the hospital where emergency room personnel examine her. She is x-rayed and the emergency room doctor tells her the x-rays are normal. They tell her she has suffered a sprain or strain of the soft tissue and they prescribe her pain medication. They tell her if the problem has not resolved within three to four days that she should consult her doctor. Not only does the pain not go away after three or four days, it becomes worse, so she schedules a visit with her family physician. The family doctor tells her that she has a

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sprain, like a sprained ankle and that it will resolve after six to twelve weeks and that additional pain medication would be appropriate. A month goes by and our friend has not gotten any better, in fact the symptoms are worse. She suffers from depression, anxiety, a difficult time sleeping, a listless attitude, along with regular headaches, neck, and arm pain. She gets no sympathy from her husband because the doctors have told her that the injury will resolve. In frustration and somewhat in desperation she walks into your office. You wait for the symptoms to resolve over the next few months, but they do not. Eventually the family doctor refers her to a neurologist who orders and MRI. The findings on MRI are essentially negative except for multiple level degenerative disc disease and some narrowing in her vertebra. She is not a candidate for surgery. Ten months post collision our friend is still dealing with chronic pain and regular headaches. At this point, unless your client is prepared to accept a nominal settlement, start putting your trial notebook together because this case is going to trial. The defense attorney will rely on the following ten myths about low property damage rear end collisions to get you to settle the case for an inadequate or nominal amount of compensation. Myth Number 1: Minor damage to the vehicle means inconsequential injury to the occupant. The biggest challenge for the advocate is to get the jury to understand that a big dent does not always mean injury nor does a small dent rule out any injury. Dr. Ian MacNab noted that the severity of an impact cannot predict the degree of injury of a person involved in a motor vehicle accident.1 It is a well-known principle in the medical literature that “there is only a minimal association of a poor prognosis with the speed or severity of the collision and the extent of vehicle damage.”2

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Myth Number 2: The victim did not complain of pain at the scene of the accident, so if there was an injury, it must be slight. Delay in onset of symptoms is a common characteristic of a connective tissue injury. The delay in symptoms frequently reported by the patient is probably related to the gradual effusion and microscopic hemorrhage in the neck flexor muscles.3 There have been several studies that discuss delay in onset of symptoms following rear-end collisions. A 1995 study found that 21% of whiplash subjects did not appear to be injured at the scene of the collision.4 In 1993 a study reported 14% of people reported onset of symptoms 24 hours to one week postaccident.5 The plaintiff’s lawyer should illicit evidence explaining the organic basis for delayed onset of pain from the appropriate medical expert. Myth Number 3: With a high seat back or head restraint, it is impossible to get whiplash injury. When the impact occurs from the rear, the vehicle tends to lift in front, which lowers the seat 2-3 inches. This causes a “ramping” effect. The force of the collision, combined with the forward momentum, causes the occupant to “ride up” the seat back. As a result of this “ride up” or “ramping”, the head and neck may no longer be protected by the head restraint, which may now act as a fulcrum, increasing the forces on the person's neck. 6 Further, head restraints are only effective when properly positioned. At a starting point of greater than two inches, the ability of the head restraint to protect against neck injury drops off sharply.7 If properly used, headrests can reduce the incidence of cervical acceleration deceleration injury by 10-17%.8 A head restraint that is positioned too low may increase the seriousness of the neck injury by acting as a fulcrum for the head.9 A study by the United States government found that only 25% of adjustable head restraints are properly positioned.10 As soon as the case comes to your

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office, go take a picture of your client as she was seated during the collision, with an approximation of the head restraints position at the time of impact. Myth Number 4: The injury is a simple strain or sprain and will heal in six to twelve weeks. In every case the plaintiff’s attorney must be prepared to face the defense doctor who gets on the stand and says, “If there was any injury, the plaintiff should have healed in a few weeks.” This idea is flat wrong. There have been 32 clinical studies of motor vehicle accident whiplash victims from six months to fifteen years, post accident. These studies reveal an average 43% of the victims had long-term persistent symptoms.11 Myth Number 5: Permanent injuries from a whiplash-associated disorder are very rare. During injury, hemorrhage within the capsular ligaments gives rise to swelling of the nerves and eventually adhesions between the dural sleeve and the nerve root, these factors give rise to symptoms that may be prolonged for months or even years after the injury.12 The somatosensory system normally serves the valuable function of alerting the individual to actual or potential tissue damage. However, following peripheral tissue or nerve injury, a pathological state sometimes develops in which there is a reduction in pain threshold (allodynia), an increased response to brief stimulation (persistent pain) and a spread of pain and hyperalgesia (abnormally increased pain sense) to uninjured tissue. The most distressing feature of these pathological processes is that they persist long after healing of the damaged peripheral tissue.13 Myth Number 6: Since there are no objective abnormalities, the victim has no permanent injury. The defense will insinuate that a negative x-ray finding indicates no injury was sustained. Before your treating doctor gets on the stand make sure they are prepared to discuss the significance of “normal” x-ray findings. X-rays can be misleading as to the patient’s condition.14 Simply put, x-rays don’t show soft tissue

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injury.15 A recent study using double anesthetic block technique revealed the posterior zygapophysial joints were primary pain generators in chronic neck pain patients who had suffered whiplash.16 Autopsy studies show that the lesions causing the chronic pain in the zygapophysial joints are not visible on x-ray.17 Myth Number 7: The victim is trying to get a big settlement for a minor injury. Once compensated, the symptoms and pain will go away. In 1991 Pennie and Agambar found no significant correlation in the recovery between litigated and nonlitigated cases of whiplash.18 Again in 1993 Parmar and Raymakers reported studying 100 patients for eight years after injury. Only four cases improved soon after settlement.19 Myth Number 8: The plaintiff had a preexisting degenerative disc disease. All medical problems are due to that preexisting condition and are totally unrelated to the collision. First, pre-existing degenerative changes in the cervical spine, no matter how slight, do appear to affect the prognosis adversely.20 The vulnerability of the cervical discs to rupture increases as degeneration, annular fissuring, and nucleus pulposus desiccation progress, resulting in a situation in which a trivial trauma may cause disc rupture.21 In as much as these changes (normal degeneration) occur slowly over a period of time, the nerve roots may have an opportunity to adjust somewhat to their narrowed canals. The nerve roots may be able to tolerate such encroachment forces until an insult or apparent trivial trauma is imposed upon them.22 Myth Number 9: Men and women are equally at risk to suffer whiplash injury in a rear impact collision. The late whiplash syndrome is common in women, especially in the 21 to 40 years’ distribution.23 It is well reported that persistent neck

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pain is more common in women by a ratio of 70:30.24 Further, the incidence of recovery from symptoms is significantly higher in men than in women.2526 Myth Number 10: A whiplash injury does not affect a person’s lower back. Injury to the thoracic and lumbar spine can also occur in rear-end motor vehicle collisions. Three separate studies, in 1955, 1975, and 1991 found low back pain in 34% to 42% of whiplash victims.27 28 29 How to select the right case to try? First of all, given the fact that most carriers are not paying any money on these cases, regardless of the specific facts, there are an abundance of very legitimate cases to try. Unfortunately, making a gross generalization, the average cost to prepare the above case for trial is between $5,000 and $10,000 dollars. Because of the financial risk, good case selection is critical to your success. Fortunately, there are prognostic factors from the medical literature that can be consulted when figuring out which cases to try. Pre crash factors influencing initial prognosis negatively are female gender, tall person, spinal stenosis (narrowing), and pre-existing degenerative changes. Factors during the crash that influence prognosis negatively are an unsuspecting occupant, head turned or tilted,30 lap and shoulder belt worn, occupant in a small car and a low or absent head restraint. Post crash factors influencing long term prognosis negatively are initial pain in the arm or leg (early radicular symptoms); jaw pain, buzzing in the ear (tinnitus), dizziness, early sleep disturbance and a short latency interval of symptoms, all seem to reflect a more severe and potentially chronic injury.31 32 Beware: In the current auto litigation environment, it is critical that the client be told early on that their case is going to trial, and that they may potentially have to pay the defendant’s costs if a C.C.P. section 998 offer to compromise is not exceeded at trial. This warning should be given as soon as the lawyer is able to get a handle on the nature

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of the injury and whether or not the case is worth taking to trial. The worst thing that can happen is to properly prepare and work up the case only to have your client get cold feet when the effect of C.C.P. section 998 is explained, just prior to trial. All your work and effort are down the drain once your client instructs you to take a low settlement offer after all of the expert discovery has been paid for and completed. This circumstance is a lose lose for all parties involved. Conclusion: The low impact case can be won. A jury will listen to the facts of your case even after looking at the picture of your client’s car. Slowly during the course of the trial the plaintiff’s lawyer must begin to introduce the jury to concepts that do not make intuitive sense. An explanation of why a shoulder harness may cause a more severe neck injury is a good place to start. Lap and shoulder harnesses prevent us from flying through the window and messing up our face, but in a rear end collision the shoulder harness abruptly stops our shoulder acceleration, just as the head and neck are reaching maximum acceleration, causing an additional “close line” type injury. Essentially you will be asking the jury to step back and throw out the stereotype that a big dent always means injury and a small dent always means no injury. When you stand up for your rebuttal argument after the defense has just pleaded to the jury to use their “common sense”, consider sharing the following story. One evening a battleship was out on patrol in foggy weather. During the patrol the lookout reported a light on the starboard bow. “Is it steady or moving astern?” the captain called out. Lookout replied, “Steady, captain,” which meant the two ships were on a collision course. The captain then called to the signalman, “Signal that ship: We are on a collision course, advise you change course 20 degrees.” Back came a signal, “Advisable for you to change course 20 degrees.” The captain said, “Send, I’m a captain,

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change course 20 degrees.” “I’m a seaman second class,” came the reply, “You had better change course 20 degrees.” By that time, the captain was furious. He yelled out, “Send, I’m a battleship, change course 20 degrees!” Back came the flashing light, “I’m a lighthouse.” This story will at least get a laugh. Some of the jurors may say to themselves, “wait a second, maybe we should take a step back and look at this case from a different point of view before we jump to a conclusion about the property damage and its relationship to the expected injury.” Good luck with your next trial.33
MacNab I: Acceleration Injuries of the Cervical Spine. Journal of Bone and Joint Surgery, 1964; 46A(8):1797-1799. 2 Evans, Randolph, M.D.: Some Observations on Whiplash Injuries. The Neurology of Trauma. Neurologic Clinics, Vol. 10, No. 4:975-997. 3 Cailliet, Rene: Neck and Arm Pain, 3rd Ed., F.A. Davis Co., 1991, at page 88. 4 Quebec Task Force on Whiplash - Associated Disorders, Spine, Vol. 20, No. 8S, April 15, 1995. 5 Robinson DD and Cassar-Pullicino VN: Acute neck sprain after road traffic accident: a long term clinical and radiological review. Injury (1993) 24(2), p 79-82 6 Baker, Douglas: The Permanency of Whiplash, by Doug Baker, Integrity Seminars, Inc., P.O. Box 995, Eagle, Idaho 83616, phone (208) 377 8849 (excellent resource). 7 Mertz HJ Jr., Patrick LM: Investigation of the kinematics and kinetics of whiplash. In: Proceedings, 11th Stapp Car Crash Conference, SAE 670919, Detroit MI, Society of Automotive Engineers, 1967. 8 Otremski I, Marsh JL, Wilde BR: Soft tissue cervical spine injuries in motor vehicle accidents: Injury (1989), 20, 349-351. 9 Olney DB, Marsden AK: The effect of head restraints and seat belts on the incidence of neck injury in car accidents. Injury (1986), 17, 365-367. 10 Kahane CJ, Evaluation of Head Restraints: Federal Motor Vehicle Safety Standard 202, NHTSA DOT HS 806 108, 1982. 11 Nordhoff L: Motor Vehicle Collision Injury for the 1990’s Doctor \ Attorney, Automotive Injury Research Institute, 1994. 12 Seletz E: “Whiplash Injuries of the Cervical Spine and Their Clinical Seaquelae, Am J of Pain Mang, Jan. 1994. 13 Coderre TJ, Katz J et al: Contribution of central neuroplasticity to pathological pain: review of clinical and experimental evidence. PAIN: 52 (1993) 259285. 14 Kenna C, Murtagh J: Whiplash, Australian Family Physician, Vol. 16, No. 6, June 1987. 15 Schaefer D, Flanders A, Northrup B, Doan H, Osterholm J: Magnetic Resonance Imaging of Acute Cervical Spine Trauma. Correlation With Severity of Neurologic Injury. Spine, 1989: 14(10): 1090-1095. 16 Barnsley L, Lord SM, Wallis BJ and Bogduk N, The prevalence of chronic cervical zygapophysial join pain after whiplash. Spine 1995; 20:20-26. 17 Taylor JR, Finch P; Acute Injury of the Neck: Anatomical and Pathological Basis of Pain. Annal Acad Med, March 1993, 22:187-192. 18 Pennie B and Agamber L: Patterns of injury and recovery in whiplash. Injury: Brit J of Accd Surg, 1991, Vol. 22(1), p 57-59. 19 Parmar HV and Raymakers R: Neck injuries from rear impact road traffic accidents: prognosis in persons seeking compensation. Injury (1993) 24, (2), 75-78. 20 Norris SH, Watt I: The Prognosis of Neck Injuries Resulting From Rear-End Vehicle Collisions. The Journal of Bone and Joint Surgery British Volume. Nov. 1983, Vol. 65-B, No. 5 :608-611, at page 611,
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Moskovich R, Neck Pain in the Elderly: Common Causes and Management, Geriatrics, 43(4): 65-50, 1988. 22 Jackson, R.: The Cervical Syndrome, Fourth Edition; 1977 23 Balla JI: The Late Whiplash Syndrome. Aust NZ J Surg 50:610-614, 1980. 24 Evans, supra. 25 Hohl M: Soft Tissue Injuries of the Neck in Automobile Accidents. The Journal of Bone and Joint Surgery, 1974; 56A(8): 1675-1681. 26 Schutt CH, Dohan FC: Neck Injury to Women in Auto Accidents. A metropolitan plague. JAMA. December 16, 1968, Vol. 206, No. 12. Pages 2689-2692. 27 Braff MM, Rosner S: Symptomatology and treatment of injuries to the neck. NY State J Med 55:237242, 1955. 28 Hohl M, Soft Tissue Injuries of the Neck, Clin Ortho and Rel Res, 109:22-29, 1975. 29 Watkinson A, Gargan MF, and Bannister GC: Prognostic Factors in Soft Tissue Injuries of the Cervical Spine. Injury: Br J Accid Sur. Vol 22(4), 307-309, 1991. 30 Barnsley L: Cervical Flexion-Extension / Whiplash Injuries, Spine: State of the Art Reviews, Sept. 1993. 31 Sturzenegger MD, Giuseppe MA, Radanov BP: Presenting symptoms and signs after whiplash injury; The influence of accident mechanisms. Neurology 1994; 44:688-693. 32 Nordhoff L: Motor Vehicle Collision Injuries: Mechanisms, Diagnosis, and Management. Aspen Publications, 1996, Gaithersburg, Maryland. 33 This story appeared in Stephen R. Covey’s best seller, The Seven Habits of Highly Effective People and was shared with this author by Douglas Baker, supra., who suggested its use in the low impact rear end collision case.

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